March 4th, 2010
Karlin Lillington writes in today’s Irish Times about the German decision striking down data retention law as a breach of privacy and what it means for the Data Retention Bill currently before the Oireachtas. Here’s an excerpt:
ANALYSIS: Data retention proposals about to become law here have been declared an invasion of privacy in Germany. Government please take note
IF THE Government fails to reconsider the terms of its Data Retention Bill, currently in its final stages before the Houses of the Oireachtas, it is likely to find that costly court challenges and a forced reworking of the legislation lie ahead.
The Retention of Data Bill 2009 seeks the overdue implementation of an EU directive on data retention (storage of call data for two years and internet-use data for one year, for everyone in the country, including children). It is the tail-end of a long process in which the right to privacy has been pitted against the needs of law enforcement to have access to records for criminal investigations.
Even as the Bill passed a Dáil vote that cements in its current provisions, there are signs that all is not well on the European front for national data retention legislation.
On Tuesday, in a significant finding, the German constitutional court threw out Germany’s existing data retention laws for a range of reasons, many of which have direct application to Ireland.
The German court echoed precisely the concerns expressed by many groups and individuals here about our own legislation – worries that were given a lone voice in the Dáil debate by Labour TD Seán Sherlock.
The German court found that enacting any data retention legislation requires a regard for what it termed the exceptional intensity of the interference with human rights that result from such measures. It therefore obligates the government to have clear and transparent measures in place to ensure data safety, data use, and adequate legal remedy available to citizens for misuse of personal data.
It said retention legislation must set a very high standard for safety of all data, and this cannot be balanced against a general burden of cost, whoever that may lie with. It underlined that access to data should only be allowed in cases targeting most serious crimes and terrorist offences. It argued that individuals must be notified after the fact that their information was accessed for an inquiry.
All of these issues have been highlighted as a concern in Ireland, where the Government has tried to downgrade the level of the crimes that our legislation applies to; does not outline a quality of service that must be met to protect data; does not cover the costs of managing and protecting data, but passes them on to the internet and telecoms sector; and does not give adequate legal remedy to citizens nor adequate oversight. Irish legislation would not meet the provisions laid out by the German court.
Privacy advocacy group Digital Rights Ireland has already brought a constitutional case against the Government in the High Court on the constitutionality of Irish legislation. This is widely expected to be referred to the European Court of Human Rights and prove a test case on the issue for the EU as a whole, where the German case will signal issues likely to prove troublesome for Irish and other EU nations’ retention laws.